Hill v. City of Boston. which became the property of the city, and from which it derived pecuniary profits and emoluments. In Mayor, etc., of New York v. Furze, 3 Hill, 612, the city of New York was held liable for negligence in not keeping a sewer in repair, which, under statutes applying to that city only, the city had built and owned, and for the expenses of constructing which the city was authorized to lay assessments upon the estates benefited thereby. In Wilson v. Mayor, etc., of New York, 1 Denio, 595, it was held, overruling a dictum to the contrary in Mayor, etc., of New York v. Furze, that a city was not liable for neglect to make a sufficient sewer, that being a question upon which the decision of the municipal authorities was conclusive. The subsequent cases of Lloyd v. Mayor, etc., of New York, 1 Selden, 369, and Barton v. Syracuse, 36 N. Y. 54, were, like Mayor, etc., of New York v. Furze, actions for negligence in repairing sewers. It is said by Mr. Justice HUNT that the decision in Child v. Boston, 4 Allen, 41, so far as it held that the city was not responsible for any deficiency in the plan of drainage adopted, "is in hostility to Rochester White Lead Co. v. Rochester, 3 N. Y. 463, where the city was held liable because it constructed a sewer which was not of sufficient capacity to carry off the water draining into it; the work was well done, but the adoption and carrying out of the plan was held to be an act of negligence." 91 U. S. 556. But the report of Rochester White Lead Company v. Rochester states that "the referees" (whose statement of the facts was incorporated into the record upon which the case was heard), "found that the culvert, in consequence of the smallness of its size and the want of skill in its construction, was insufficient to carry off the water," etc. 3 Comst. 465. And in Mills v. Brooklyn, 32 N. Y. 489, 497, 499, in which the only objection to a sewer was that it was not sufficiently large to carry off the water, and there was no want of skill in its construction, it was held that no action would lie; and DENIO, C. J., delivering the unanimous opinion of the Court of Appeals, said that the decision in Wilson v. Mayor, etc., of New York, ubi supra, had always been referred to as an accurate exposition of the law; and in support of this statement cited, among other cases, Rochester White Lead Company v. Rochester, and pointed out that in that case the action was maintained upon the ground of negligence and unskillfulness in the construction of the culvert. Hill v. City of Boston. In Hutson v. Mayor, etc., of New York, 5 Sandf. 289, in 1851, a majority of the Superior Court of the city of New York, against an exceedingly able dissenting opinion of Mr. Justice (formerly Vice-Chancellor) SANDFORD, held the city of New York liable to an action for neglect of a duty imposed by its charter to repair a highway, and the decision was affirmed by the Court of Appeals. 5 Selden, 163. And the other cases referred to show that the same rule has been since held in that State to apply both to cities and to incorporated villages, charged by their acts of incorporation with the duty of repairing highways. Hickok v. Trustees of Plattsburg, 15 Barb. 427, and 16 N. Y. 161, note; Conrad v. Trustees of 1thaca, id. 158; Storrs v. Utica, 17 id. 104; Davenport v. Ruckman, 37 id. 568; Requa v. Rochester, 45 id. 129; s. c., 6 Am. Rep. 52. The ground of those decisions is that stated by SELDEN, J., in an opinion which was approved by the Court of Appeals, as follows: "The surrender by the government to the municipality of a portion of its sovereign power, if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking on the part of the corporation to perform with fidelity the duties which the charter imposes." Weet v. Brockport, 16 N. Y. 161, 171, note. It was admitted in that opinion, and had been previously decided by the same learned judge in Morey v. Newfane, 8 Barb. 645, which does not appear to have ever been overruled, that a town was not liable to such an action. Of the two Pennsylvania cases cited, the one was the case of a city being in possession of a public wharf, exercising exclusive supervision and control over it, and receiving tolls for its use, and therefore rightly held liable to an action for special injury to an individual in consequence of its neglect to keep the wharf in proper condition for use. Pittsburgh v. Grier, 22 Penn. St. 54. In the other, a city, which was bound by its charter to keep the streets in repair, was held liable to an action for an injury occasioned by its neglect to do so. Erie v. Swingle, 22 Penn. St. 384. But in Pennsylvania towns and counties are held liable to similar actions. Dean v. New Milford, 5 W. & S. 545; Humphreys v. Armstrong, 56 Penn. St. 204; Rapho v. Moore, 68 id. 404, 407; s. c., 8 Am. Rep. 202. The single case referred to in Maryland shows that in that State also counties are held to be so liable. County Commissioners v. Duckett, 20 Md. 468. Where towns and counties are held liable to such actions, there is, of course, no rea Hill v. City of Boston. son why cities should be exempt; but the assertion of such a liability in counties or towns, when not declared by statute, is, as we have already seen, and as is distinctly admitted in Barnes v. District of Columbia, 91 U. S. 552, opposed to the well-settled law. In the two Virginia cases referred to, the test of the liability of a municipal corporation is stated in exact accordance with the decisions in England and in Massachusetts. In the first case, it was said that "where the authority, though for the accomplishment of objects of a public nature and for the benefit of the public, is one from the exercise of which the corporation derives a profit, or where the duty, though of a public nature and for the public benefit, may fairly be presumed to have been enjoined upon the corporation in consideration of privileges granted to and accepted by it, the exemption does not apply; and the reason is that, in such cases, the corporation is not acting merely as an agent of the public and with a view solely to the public benefit, but that in the former it is pursuing its own interest and profit, and in the latter is executing a contract for which it has received a consideration." Sawyer v. Corse, 17 Gratt. 230, 241. In the second case, the duties for breach of which a municipal corporation was said to be liable to private action were defined as "those ministerial, specified duties, which are assumed in consideration of the privileges conferred by their charter." Richmond v. Long, 17 Gratt. 375, 379. And in both cases the judgment of the Court of Appeals was in favor of the original defendant. The decisions in North Carolina and Alabama appear to have proceeded upon the ground that the corporation had received a peculiar benefit in the special privileges and immunities granted to it. In Meares v. Commissioners of Wilmington, 9 Ired. 73, the action was not for an injury resulting from the plaintiff's use of a defective way or public building, but for causing the plaintiff's house to fall by the unskillful and careless cutting down of the grade of a street, for which no compensation was provided by the statutes under which the work was done; and the opinion was based upon the fallacies that there was no difference, in liability to action, between a municipal and a private corporation, and that the fact that the corporation was at the expense of making the work was the surest test by which to find out for whose benefit the work was done. In Smoot v. Mayor, etc., of Wetumpka, 24 Ala. 112, the action was for neglect of a duty to repair highways, imposed by Hill v. City of Boston. special charter, in the same section which released the inhabitants "from working on roads and highways out of the said city, and from patrol duty, except under authority of said city." Three Ohio cases are referred to: Rhodes v. Cleveland, 10 Ohio, 159; McCombs v. Akron, 15 id. 474; Western College v. Cleveland, 12 Ohio St. 375. In Rhodes v. Cleveland, the report shows nothing of the nature of the suit, except that it was "an action on the case for cutting ditches and water-courses in such a manner as to cause the water to overflow and wash away the plaintiff's land;" and the point decided was, that the plaintiff need not show that the corporation acted illegally or maliciously. In McCombs v. Akron, an action on the case was sustained for an injury to the plaintiff's property by the cutting down and grading of a street by a city, strictly within the scope of its legal authority, and unattended by any circumstances of negligence or malice - a conclusion inconsistent with the decisions of the Supreme Court of the United States, of this court, and of the courts of about every other State in which the question has arisen. Smith v. Washington, 20 How. 135; Callender v. Marsh, 1 Pick. 418; Dillon on Mun. Corp., § 783, note. In Western College v. Cleveland, the point decided was that a city, whose charter made it its "duty to regulate the police of the city, preserve the peace, prevent riots, disturbances and disorderly assemblages," was not liable to an action for the destruction of property in a riot, or for the neglect of the police officers in not preserving the peace and preventing such destruction. In Illinois, as shown by the cases referred to, incorporated cities are held liable to actions for neglect of duties imposed by their charters to repair highways and bridges (Browning v. Springfield, 17 Ill. 143; Springfield v. Le Claire, 49 id. 476); although in earlier and later cases in that State, cited in the former part of this opinion, counties and towns have been held not to be liable under general laws for like neglect. In Pekin v. Newell, 26 Ill. 320, cited for the present plaintiff, the city assumed to act under a special statute in constructing, and taking tolls upon, the way, for a defect in which it was held liable; and the only defense made was that the city had constructed the way on a pile bridge, when the authority conferred by the statute was to make an embankment and plank road at the place. In the remaining case referred to in Illinois, the court sustained an action on the case against a city for negligence of the city council in failing to collect an assessment, laid by way of better Hill v. City of Boston. ment upon estates benefited by the laying out of a street, to compensate the plaintiff and others for the damages sustained by them from such laying out. Clayburgh v. Chicago, 25 Ill. 535. Of that decision, it is enough to say that it is wholly inconsistent with the system of judicial remedies in this Commonwealth. The cases in Wisconsin, referred to by Mr. Justice HUNT, arose under statutes similar to those of this and other New England States, expressly making all towns and cities liable to actions for damages for defects in highways. Cook v. Milwaukee, 24 Wis. 270 ; s. c., 1 Am. Rep. 183; Ward v. Jefferson, 24 Wis. 342. In Alexander v. Milwaukee, 16 Wis. 247, cited on the plaintiff's brief, the action was for consequential damages from the proper construction of a public work, there had been no neglect of duty, and there was held to be no liability on the part of the city. The result of this review of the American cases may be summed up as follows: There is no case in which the neglect of a duty. imposed by general law upon all cities and towns alike, has been held to sustain an action by a person injured thereby against a city. when it would not against a town. The only decisions of the State Courts, in which the mere grant by the legislature of a city charter, authorizing and requiring the city to perform certain duties, has been held sufficient to render the city liable to a private action for neglect in their performance, when a town would not be so liable, are in New York since 1850, and in Illinois. The cases in the Supreme Court of the United States, in which private actions have been sustained against a city for neglect of a duty imposed upon it by law, are of two classes: 1st. Those which arose under the peculiar terms of special charters, in the District of Columbia, as in Weightman v. Washington and Barnes v. District of Columbia, or in a territory of the United States, as in Nebraska City v. Campbell. 2d. Those which, as in Mayor, etc., of New York v. Sheffield and Chicago City v. Robbins, arose in New York or in Illinois, and in which the general liability of the city was not denied or even discussed, and apparently could not have been, consistently with the rule by which the Supreme Court of the United States, upon questions of the construction and effect of the Constitution and statutes of a State, follows the latest decisions of the highest court of that State, even if like words have been differently construed in other States. Elmendorf v. Taylor, 10 Wheat. 152. 159; Christy v. Pridgeon, 4 Wall. 196; Richmond v. Smith, 15 id. 429; Tioga |